The opinion of the court was delivered by: Honorable Larry Alanburns United States District Judge
ORDER: (1) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; and MOTION TO CONTINUE PRETRIAL CONFERENCE AND RELATED DATES (2) DENYING AS MOOT JOINT [Dkt No. 29, 39]
This matter is before the Court on defendants' Motion For Summary Judgment ("Motion") in this 42 U.S.C. § 1983 ("Section 1983") civil rights action arising out of the fatal shooting of Sergio Garcia-Vasquez ("Garcia-Vasquez") by sheriff's deputies. The remaining plaintiff is the informal estate of Garcia-Vasquez, purportedly represented by the decedent's common-law wife, a resident of Mexico. Garcia-Vasquez's two minor children, appearing through their guardian ad litem Stephen G. Lincoln, were dismissed as party plaintiffs.
Plaintiff filed an Opposition to the Motion, and Defendants filed a Reply. Pursuant to Civil Local Rule 7.1(d)(1), the court finds the issues presented appropriate for decision on the papers and without oral argument. For the reasons discussed below, the Motion is GRANTED.
On July 28, 2005, San Diego County Sheriff Deputies John Spach, Shawn Aitken, and a third officer responded to a report of a disturbance at the residence where Garcia-Vasquez rented a room in the home of Pedro Ramirez and his wife, Asuncion Perea Cortez, in Vista, California. A confrontation ensued inside the house. Both Deputy Spach and Deputy Aitken ultimately shot Garcia-Vasquez, with Deputy Aitken's shot killing him.
For purposes of deciding this Motion, the parties' Joint Statement Of Undisputed Facts establishes two deputy sheriffs, including defendant Spach, had contact with Garcia-Vasquez the evening before the shooting. Dkt No. 38. The deputies responded at that time to Pedro Ramirez's report of Garcia-Vasquez's strange conduct in claiming his "wife" was missing. Garcia-Vasquez repeated that contention to Deputy Spach. The deputy took a missing persons report from him. Several hours later, about 1:00 a.m. on July 28, 2005, the officers returned to the residence after Garcia-Vasquez had placed several calls to the Sheriff's communications center. He met them outside the residence. Deputy Spach asked him in Spanish if he had weapons, drugs, or needles. Garcia-Vasquez answered affirmatively, and deputy Spach decided to perform a pat-down. The deputy asked him to turn around. Garcia-Vasquez turned away, then turned back to face the officer. He turned around again when the officer told him to, but then ran into the residence, slamming closed the security screen door, and laughed. The officers left.
That afternoon, Ms. Perea called her husband at his work to say Garcia-Vasquez accused her of hiding his wife. Garcia-Vasquez behaved violently toward her, and she locked herself in a room away from him while he pounded on the locked door. That evening, three deputies, including Spach and Aitkin, responded to a dispatch call regarding a fight or disturbance at the same residence. Mr. Ramirez and Ms. Perea were there and let the deputies into the residence, telling them Garcia-Vasquez was not acting normal and directing them to his bedroom. Deputy Spach went to the closed bedroom door. He heard Garcia-Vasquez talking on the other side. He announced his presence and that Sheriff personnel were present and asked Garcia-Vasquez to open the door. He received no response. He checked the door and found it unlocked. He opened the door and saw Garcia-Vasquez on the telephone. He instructed him to put the phone down and come out of the room. Deputy Spach saw him put the phone down and scream. Garcia-Vasquez reached under the bed and pulled out two cast iron dumbbells, holding one in each hand in a pugilistic stance. Deputy Spach backed away and yelled at Garcia-Vasquez to put down the weights. When he did not do so, deputy Spach took out his OC pepper spray and sprayed Garcia-Vasquez in the face, with no effect. Garcia-Vasquez charged the deputy in a "walk-run." Deputy Spach backed into the living room and drew his handgun from its holster, while Garcia-Vasquez continued advancing, swinging the weights in a windmill fashion. Garcia-Vasquez threw his right-hand weight at deputy Spach, who blocked it with his arm. The weight hit his arm and fell to the floor. The deputy pointed his gun at what he thought was Garcia-Vasquez's center of mass and fired a first round without wounding him. Garcia-Vasquez continued to advance on Spach, who retreated around a sofa to the other side of the room, then fired a second round at Garcia-Vasquez which (other undisputed evidence establishes) hit him in the right thigh, but he continued to advance toward deputy Spach in an attack with the dumbbell. Aitken Decl. ¶ 9; Spach Decl. ¶ 10; Ramirez Depo. 23:12-24:5; Perea Depo 30:13-31:18. Deputy Aitken was positioned on the back side of the sofa, with his arm reaching over the sofa and his gun pointed at Garcia-Vasquez's head. He did not fire at that moment because the other residents were down range of his line of fire. Deputy Aitkin lowered his aim, stepped to his right, and shot Garcia-Vasquez, hitting and killing him.*fn1
At the time of that incident, Robert Ahern was the captain of the Sheriff Department's Vista Patrol Station. The Joint Statement includes the observation he issued no recommendation regarding the use of Tazers or alternatives to the use of lethal force as a result of the Garcia-Vasquez event.
Plaintiff the Garcia-Vasquez Estate ("Estate" or "Plaintiff") filed this action through the self-described personal representative of the Estate, Elizabeth Sorely Regalado-Hernandez ("Regalado), the common-law wife of Garcia-Vasquez, who resides in Oaxaca, Mexico.*fn2 Compl. ¶ 3. The Complaint names as defendants the County of San Diego, Deputies Spach and Aitken, and Captain Robert Ahern (collectively "Defendants"). Following the Court's Order granting in part and denying in part Defendants' Motion To Dismiss (Dkt No. 13), the only remaining plaintiff is the Estate, and the remaining claims are: the Third Cause of Action, a Section 1983 claim of Excessive Force alleged against Spach and Aitken; the Fourth cause of action, a Section 1983 Monell*fn3 claim alleged against the County of San Diego; the Fifth Cause of Action, a Section 1983 Supervisory Liability claim alleged against Ahern; the Seventh Cause of Action, a state law battery claim alleged against Spach, Aitken, and the County of San Diego; and the Eighth Cause of Action, a state law negligence claim alleged against all the defendants.*fn4
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Rule 56(c). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305-1306 (9th Cir. 1982). Summary judgment must be entered "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250-251 (1986). However, "[i]f reasonable minds could differ," judgment should not be entered for the moving party. Id.
The moving party bears the initial burden of identifying the elements of the claim in the pleadings, or other evidence, which that party "believes demonstrates absence of a genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. Celotex, 477 U.S. at 324; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ("Summary judgment is only appropriate if, viewing the evidence in the light most favorable to the party opposing the motion, the court finds that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law"). Only material factual disputes can create a genuine issue for trial. Facts unnecessary to the decision under the applicable substantive law are not material. Anderson, 477 U.S. at 242, 248.
Conclusory allegations unsupported by evidence do not suffice to defeat a properly supported motion for summary judgment. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993) (per curiam). The non-moving party may not simply rely on its pleadings in opposition to the motion, nor can the non-moving party create a genuine issue of fact simply by making argumentative assertions in legal memoranda. S.A. Empresa, Etc. v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1982). To successfully rebut a properly supported motion for summary judgment, the nonmoving party "must point to some facts in the record that demonstrate a genuine issue of material fact and, with all reasonable inference made in the plaintiff's favor, could convince a reasonable jury to find for the plaintiff" applying a preponderance of the evidence standard. Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000), citing Rule 56, Celotex, 477 U.S. at 323, Anderson, 477 U.S. at 249, 252. The non-moving party's evidence is to be believed and all justifiable inferences are to be drawn in his or her favor. Anderson, 477 U.S. at 255.
2. Section 1983 Civil Rights Claims
To prevail on a civil rights claim, a plaintiff must prove both that (1) a person acting under color of state law committed the conduct at issue, and (2) the conduct deprived the plaintiff of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. §1983; Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988); Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000).
42 U.S.C. § 1983 creates a cause of action against a person who, acting under color of state law, deprives another of rights guaranteed under the Constitution. Section 1983 does not create any substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by governmental officials. To prove a case under section 1983, the plaintiff must demonstrate that (1) the action occurred "under color of state law" and (2) the action resulted in the deprivation of a constitutional right or federal statutory right.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (citation omitted); Graham v. Connor, 490 U.S. 386, 393-94 (1989) (Section 1983 " is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred") (citation omitted).
There is no respondeat superior or vicarious liability cognizable in 42 U.S.C. § 1983 actions. Monell v. New York city Dept. of Soc. Serv., 436 U.S. 658 (1978); Jones, 297 F.3d at 934. A supervisor cannot be held personally liable by virtue of his or her position. Rather, liability can only be predicated on actual knowledge a constitutional violation was occurring with failure to act to prevent the harm, actual participation, or directing subordinates to cause the violation. Taylor, 880 F.2d at 1045.
3. Fourth Amendment Excessive Force Analysis
"Police officers . . . are not required to use the least intrusive degree of force possible. Rather, . . . the inquiry is whether the force that was used to effect a particular seizure was reasonable, viewing the facts from the perspective of a reasonable officer in the scene." Forrester v. City of San Diego, 25 F.3d 804, 807-08 (9th Cir. 1994), citing Graham, 490 U.S. at 396. "The force which was applied must be balanced against the need for that force: it is the need for force which is at the heart of the consideration of the Graham factors." Alexander v. City and County of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994). For Fourth Amendment analysis, "[t]he question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397.
Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
Graham, 490 U.S. at 396 (internal quotation marks and citations omitted).
Under Fourth Amendment jurisprudence, "the most important single element" in the Graham analysis is "whether the suspect posed an immediate threat to the safety of the officers and others." Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994). The reasonableness determination is made as of the time of the incident:
The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.
Graham, 490 U.S. at 396-97 (internal quotation marks and citations omitted).
B. Capacity To Sue And Relation Back Doctrine
1. Estate Lacks The Requisite Formal Representative
As a threshold matter, the Court addresses Defendants' contention the Estate has no official representative and therefore the action lacks a plaintiff with the capacity to sue for the survivor claims of the decedent under the remaining causes of action. Rule 17(b) provides, in pertinent part:
Capacity to sue or be sued is determined as follows: (1) for an individual who is not acting in a representative capacity, by the law of the individual's domicile; . . . (3) for all other parties, by the law of the state where the court is located. . . .
The parties disagree as to which subdivision of Rule 17 applies in this circumstance. Defendants rely on Rule 17(b)(1) to contend under California law, standing to represent a decedent's estate must be established through evidence of a duly appointed representative or a successor in interest of the decedent, citing CAL. CODE CIV. P. § 377.30 and CAL. PROB. CODE § 9820. Absent such capacity, third parties cannot litigate claims on behalf of a decedent. Defendants represent Garcia-Vasquez was a foreign national from Mexico without legal or permanent status in the United States. They surmise his domicile is likely to be his home in Oaxaca, Mexico. They argue the "action by the estate therefore appears facially defective and subject to dismissal because there is no ...